Court No.47
Case :- CRIMINAL APPEAL No. - 5587 of 2013
Appellant :- Rizwan Ahmad Alias Pappu
Respondent :- State Of U.P.
Counsel for Appellant :- Ashok Nath Tripathi,Sudarshan Singh
Counsel for Respondent :- Govt. Advocate,Sameer Jain
Hon'ble Om Prakash-VII,J.
1. The present criminal appeal has been preferred by the accused appellant Rizwan Ahmad Alias Pappu against the judgement and order dated 30.11.2013 passed by Additional Sessions Judge, Court No.4, Varanasi in Session Trial No. 217 of 2009 (case crime no. 298 of 2008) convicting and sentencing the appellant for the offence punishable under Section 307 I.P.C. to undergo seven years imprisonment and a file of Rs. 10,000/-. In default of payment of fine, six months additional imprisonment has also been ordered.
2. The facts of the case, as unfolded by the informant Kalimuddin, are that on 29.11.2008 at about 6.00 p.m. his younger brother Qamruddin alongwith his friend Nasruddin was having tea at the shop of Bachau at Pili Kothi. All of a sudden, a noise started behind the shop. When Qamruddin and his friend Nasruddin wanted to see the noise, one person, namely, Pappu son of Mohammad Auto wale batau Shahid told them to move from there as he was Gunda of that area and in a shortwhile stabbed in the stomach of Qamruddin. Qamruddin fell-down on the spot. He was brought to S.S.P.G. Hospital by his friends and companion. Since his condition was critical the doctor asked to take him either BHU or Singh Medical. Therafter, he was brought to Singh Medical and was operated there and his position remained critical.
3. On the basis of the written report (Ext. ka-1), chik First Information Report (Ext. Ka-3) was registered at Police Station concerned on 30.11.2008 at 10.45 a.m. mentioning all the details as had been described in Ext. Ka-.1. G.D. entry was also made at the same time.
4. Investigation was started in the matter by the Investigating Officer. He inspected the place of occurrence and prepared site plan (Ext. ka-10) and recorded the statement of the witnesses. Injured was also medically examined in the matter.
5. After completing the investigation, charge-sheet (Ext. ka- 12) against the accused appellant was filed. Concerned Magistrate took the cognizance. The case being exclusively triable by sessions court, was committed to the Court of sessions.
6. Accused appeared and charge under Sections 307 IPC, was framed in the trial court against the appellant. The accused denied the charge framed against him and claimed for trial.
7. Trial proceeded, and in order to prove its case, prosecution examined, seven witnesses, wherein PW-1 Kalimuddin, PW-2 Dr. R.K. Sharma, PW-3 Constable Harinath Ram, PW-4 Shamshuddin, PW-5 T.N. Verma (EMO/ General Sergeon), PW-6 Surendra Nath Upadhyaya, Investigating Officer, who investigated the matter and proved the various police papers, PW-7 Aslam.
8. After closure of evidence, statement of accused appellant under Section 313 Cr.P.C. was recorded. Accused appellant denied the prosecution story and attributed his false implication due to false evidence given by the witnesses. In defence, no evidence was adduced.
9. Having heard the learned counsel for the parties and going through the record, the trial court has found that the prosecution has fully succeeded in bringing home the charges against the accused appellant beyond reasonable doubt and convicted and sentenced the accused appellant, hence this appeal.
10. I have heard Shri Sudershan Singh, learned counsel for the appellant, Shri Sameer Jain, learned counsel for the complainant as well as Shri R.D. Yadav, learned AGA for the State and perused the entire record carefully.
11. Castigating the impugned judgement and order, it is submitted by the learned counsel for the appellant that the injured was not examined in the matter. Other witnesses examined to prove the prosecution case were not the eye account witnesses but they were planted later on. Offence under Section 307 IPC is not made out in the present matter. Findings recorded by the trial court in the impugned judgment and order are perverse and are against the facts and evidence. Lastly the learned counsel for the appellant confines his submission only on the point of sentence awarded to the appellant and submitted that since the accused appellant has served-out more than four years of the sentence against the imprisonment awarded to him by the trial court, the appeal may be decided extending liniency on the point of sentence.
12. Per contra, learned counsel for the complainant as well as the learned A.G.A. appearing for the State submitted that from the statement of the witnesses examined in the matter charges levelled against the accused appellant have been fully established. Injured died during trial, hence he could not be examined. Oral version is supported by medical evidence. The findings recorded by the trial court regarding guilt of the accused appellant for the offence under Section 307 IPC are based on correct appreciation of facts and evidence. There is no illegality, infirmity or perversity in the findings of the trial court warranting interference by this Court. Since the trial court has taken a lenient view on the point of imposing sentence upon the accused appellant, the findings of the trial court on this point need no interference. Unnecessary leniency and sympathy shall defeat the very object for which the punishments are provided. Hence, this appeal deserves to be dismissed.
13. I have considered the rival submissions advanced by learned counsel for the parties.
14. In the present matter, as is evident from the record, PW-1 is not the eye account witness. He himself has admitted in his statement that he was informed about the incident by some- one. Although he is the first informant yet on the material point i.e. regarding implication of the appellant in the present matter his statement is immaterial. Other facts witness is PW-4 Shamshuddin, who is the brother of the injured Qamruddin. He claimed himself to be the eye account witness. As per his statement made before the Court, he reached on the spot immediately just after the incident. The present appellant and other co-accused committing the present offence ran away from the place of incident before this witness. Thus, the observation recorded by the trial Court regarding role assinged to the present appellant, on close scrutiny of the entire evidence, cannot be termed to illegal or perverse. Statement of PW-4 Shamshuddin cannot be brushed aside merely on the ground that he is brother of the injured. Although injured could not be examined in the matter as he died during trial, yet the findings recorded by the trial court on the point of guilt of the accused appellant are correct. The said findings are based on correct appreciation of evidence and do not require interference by this Court.
15. So far as the submission regarding sentence is concerned, it is always a difficult task requiring balancing of various considerations. The question of awarding sentence is a matter of discretion to be exercised on consideration of circumstances aggravating and mitigating in the individual cases.
16. It is settled legal position that appropriate sentence should be awarded after giving due consideration to the facts and circumstances of each case, nature of the offence and the manner in which it was executed or committed. It is the obligation of the court to constantly remind itself that the right of the victim, and be it said, on certain occasions the person aggrieved as well as the society at large can be victims, never be marginalised. The measure of punishment should be proportionate to the gravity of the offence. Object of sentencing should be to protect society and to deter the criminal in achieving the avowed object of law. Further, it is expected that the courts would operate the sentencing system so as to impose such sentence which reflects the conscience of the society and the sentencing process has to be stern where it should be. The court will be failing in its duty if appropriate punishment is not awarded for a crime which has been committed not only against the individual victim but also against the society to which the criminal and victim belong. The punishment to be awarded for a crime must not be irrelevant but it should conform to and be consistent with the atrocity and brutality which the crime has been perpetrated, the enormity of the crime warranting public abhorrence and it should 'respond to the society's cry for justice against the criminal'. [Vide : (Sumer Singh vs. Surajbhan Singh and others, (2014) 7 SCC 323, Sham Sunder vs. Puran, (1990) 4 SCC 731, M.P. v. Saleem, (2005) 5 SCC 554, Ravji v. State of Rajasthan, (1996) 2 SCC 175].
17. In view of the above propositions of law, the paramount principle that should be the guiding laser beam is that the punishment should be proportionate to the gravity of the offence.
18. The Apex Court in the case of G. V. Siddaramesh Versus of State of Karnataka; 2010 (87) AIC 43 (SC), while allowing the appeal of the appellant, altered the sentence. Paragraph 31 of the said judgment is reproduced below:
"31. In conclusion, we are satisfied that in the facts and circumstances of the case, the appellant was rightly convicted under Section 304-B I. P. C. However, his sentence of life imprisonment imposed by the Courts below appears to us to be excessive. The appellant is a young man and has already undergone 6 years of imprisonment after being convicted by the Additional Sessions Judge and the High Court. We are of the view, in the facts and circumstances of the case, that a sentence of 10 years' rigorous imprisonment would meet the ends of justice. We accordingly, while confirming the conviction of the appellant under Section 304-B, I. P. C., reduce the sentence of imprisonment for life to 10 years' rigorous imprisonment. The other conviction and sentence passed against the appellant are confirmed."
19. Applying the principles laid down by the Apex Court in the aforesaid judgements and having regard to the totality of the facts and circumstances of the case particularly the fact that no minimum sentence has been provided in the Indian Penal Code for the offence under Section 307 IPC and in this case the appellant has served-out more than four years of the sentence imposed upon him, I am of the considered view that the ends of justice would meet if the sentence of the appellant awarded to him under Section 307 IPC is reduced to the five years.
20. In the light of foregoing discussions, this appeal is liable to be allowed in part and the conviction of the appellant under Section 307 IPC is liable to be upheld. The impugned judgment and order dated 30.11.2013 is liable to be modified to the extent as discussed above.
21. Accordingly, the appeal is allowed in part. Conviction of the appellant under Section 307 IPC is upheld but the sentence of seven years imprisonment awarded to the appellant by the trial court shall stand reduced to five years. Fine imposed in the impugned judgment and order shall remain intact. Default clause is also not modified.
22. Let a copy of this judgement along with lower court record be sent to the Sessions Judge, Varanasi for compliance. A compliance report be sent to this Court.
Order Date :- 19.4.2017 safi